Pitken & Hendry
[2008] FamCA 186
•20 March 2008
FAMILY COURT OF AUSTRALIA
| PITKEN & HENDRY | [2008] FamCA 186 |
| FAMILY LAW – CHILDREN – Relocation – Best interests – Parental responsibility – relocation principles generally – s 65DAA – Equal time – Substantial and significant time |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 CDJ & VAJ (1998) 197 CLR 172 at 219 Goldrick & Goldrick [2007] FamCA 1260 Goode & Goode (2006) FLC 93-286 Mazorski v Albright [2007] FamCA 520 Sampson & Hartnett (No. 10) [2007] FamCA 1365 Secretary, Department of Health and Community Services v. JMB & SMB (1992) 175 CLR 218 at 270-2 Taylor & Barker (2007) 37 FamLR 461 U v U (2002) 211 CLR 238 |
| APPLICANT: | Ms Pitken |
| RESPONDENT: | Mr Hendry |
| FILE NUMBER: | BRC | 10521 | of | 2007 |
| DATE DELIVERED: | 20 March 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 18-19 February 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Byrne of Counsel |
| SOLICITOR FOR THE APPLICANT: | Hatzis Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Jordan of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Wallace Davies Solicitors |
Orders
IT IS ORDERED THIS DAY THAT
The application by the Mother, that the children of the marriage A, born … September 2002, and L, born … May 2005, (“the children”) live with her in the United States of America, is dismissed.
The parties have equal shared parental responsibility in respect of all major long-term issues with respect to the children.
Each of the parents have parental responsibility in respect of decisions that are made in relation to the children, that are not major long-term issues, during such time that the children are in their respective care.
The children live with the Mother.
The children spend time with the Father at all such times as might be agreed between the parties, and failing further or other agreement, as follows:
(a)From 9.00am Wednesday 26 March 2008 until 9.00am Monday 31 March 2008 and between those times on those days, each alternate week thereafter;
(b)For one half of the Easter, June/July and September/October school holidays each year;
(c)For one half of the December/January school holidays each year, save that time shall be in blocks of not more than two weeks in the 2008/09 holidays.
The children communicate with the Father at all such reasonable times as might be agreed between the parties, and failing further or other agreement, as follows:
(a)By email or letter at all reasonable times;
(b)By telephone or webcam on Thursday 2 April 2008 between 6.00pm and 7.00pm and on that day and between those hours, in each alternate week thereafter.
The children communicate with the Mother when spending time with the Father at all such reasonable times as might be agreed between the parties, and failing further or other agreement, as follows:
(a)By email or letter at all reasonable times;
(b)By telephone or webcam on Thursday 27 March 2008 between 6.00pm and 7.00pm and on that day and between those hours, in each alternate week thereafter.
Save as otherwise agreed in writing between the parties, the time spent by the children with each of their parents otherwise in accordance with these orders, shall alter so as to permit the children to spend face-to-face time with the parent not otherwise caring for them pursuant to these orders as follows:
(a)From 1.00pm to 6.00pm on each child’s birthday, if on a day when either child is not attending school or pre-school, and otherwise between 4.00pm and 7.00pm;
(b)For four (4) hours on each parent’s birthday, if such day falls on a day when either child is not attending school or pre-school, and otherwise for two (2) hours on each such birthday;
(c)With the Father from 5.00pm on 24 December until 2.00pm on 25 December in 2008, and between those hours on those days in each alternate year thereafter;
(d)From 2.00pm on 25 December until 5.00pm on 26 December in 2009 and between those hours on those days in each alternate year thereafter.
Each party shall do all such things and sign all such documents as may be necessary or required to:
(a)Authorise each parent to communicate with, and receive communication from, any doctor or health professional of whatever type, whom the children consult;
(b)To speak to, and receive oral or written communication from, any school, pre-school, or other educational institution attended by the children;
(c)Make the other parent aware of the times, dates and places of any sporting or extra-curricular activities engaged in by the children, and to permit attendance at, and reasonable participation in, any such activities;
(d)Keep the other parent appraised of their residential address and telephone contact number;
(e)Notify the other parent should either child suffer any medical emergency, serious illness, or other significant issue affecting either child’s health or welfare, whilst in their care.
IT IS FURTHER ORDERED THAT
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Pitken & Hendry is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 10521 of 2007
| Ms Pitken |
Applicant
And
| Mr Hendry |
Respondent
REASONS FOR JUDGMENT
Introduction
In 1994, the father was in an accident. He suffered significant injuries that have left him with physical disabilities and an impairment in his capacity to speak.
The mother was an employee of the father’s parents. A relationship developed between the two. In December 1999, they commenced co-habitation, subsequently married in 2001 and, in 2002 and 2005 respectively, their two daughters A and L - who are the subject of these proceedings - were born.
The parties separated at the end of January, 2007, with the mother and children leaving the former matrimonial home on 9 February. From the time that they commenced cohabitation until about December, 2006 the parties resided with the father’s parents. Until that time, then, the children had spent virtually the whole of their lives living in their paternal grandparent’s home.
At about the time of separation, in January 2007, the mother met W over the internet. They subsequently talked virtually every day on the telephone averaging, apparently, about four hours per day doing so. In March 2007, Mr W and the mother met for the first time when he came to Australia for two weeks. Toward the end of that two week period, Mr W proposed marriage and the mother accepted.
The plans made by the mother and Mr W during that two week period included her moving permanently with the children to the USA to live with Mr W.
That intended move by the children is opposed by the father and the resulting dispute is the subject of these proceedings.
The Act and “Relocation Cases”
(a)“Relocation Cases” Generally
The term “relocation case” is a convenient descriptor in wide use for cases where the living arrangements for a child proposed by one parent involves a significant geographic separation from the other parent. As a description, the term is convenient.
However, there are, in truth, no sub-categories of parenting case; each such case requires a determination of the child’s best interests specific to that child and the specific circumstances of the proposed parenting by his or her parents.
That in turn requires interpreting the Act (specifically Part VII of the Family Law Act 1975) which confers the power to make parenting orders and dictates the process by which any such decision is arrived at. The task of discerning the proper meaning of the legislation is not an exercise in semantics or sophistry. The nature of what the Act requires of a court is central to the court’s role and power.
The effect of the 2006 amendments in cases such as the present has, to one extent or another, been the subject of judicial consideration, in particular, recently by the Full Court of this Court. (Taylor & Barker [2007] Fam CA 1246; Sampson & Hartnett (No. 10) [2007] FamCA 1365; Goldrick & Goldrick [2007] FamCA 1260). In Goode & Goode [2006] FLC 93-286, the Full Court examined the amendments more generally, albeit in the context of interim orders and not in a “relocation case”.
Two clear tenets of legislative intent (relevantly) emerge. First, it is intended that both parents of children should have an ongoing role in the co-parenting, or co-nurturing, of their children that is of value to the children. Secondly, that tenet, and the interference by a court in co-nurturing by parents, should, in all cases, be governed by a determination of best interests specific to that child and that child’s particular circumstances.
The Act makes it abundantly clear – and reminds the court numerous times in different places – that the essential exercise in making parenting orders is to arrive at ultimate findings directed to the specific children’s best interests. Findings as to best interests underpin each of the specific matters to which the court is directed by the Act. (See, eg: s 60B(1)(a); 60CA; s 61DA(4); ss 65DAA (1)(a); 65DAA(2)(c) and Note 1 to each of the latter two sections). And, by way of corollary, the assessment of best interests is to be conducted within the statutory objective of maximizing parental involvement consistent with that assessment.
Whilst not constituting a separate category of parenting case, those principles can be seen to be thrown into sharp focus where one party would have a child live with him or her and the geographic separation of parents means that significant periods of time will separate face to face co-parenting opportunities. But, consistent with long-standing authority, including from the High Court (see the cases discussed in Taylor & Barker), and, in my view, consistent with a reading of Part VII as a whole, it seems to me that the issue of relocation ought not be determined separately from other issues relevant to a determination of best interests in a parenting case.
As the heading to s 60CC indicates, the section determines how a court is to determine what is in a child’s best interests. The mandatory considerations (s 60CC) are, like their predecessors (s 68F(2)), not objective standards. (See, eg. Secretary, Department of Health and Community Services v. JMB & SMB (1992) 175 CLR 218 at 270-2). The s 60CC considerations are signposts or touchstones within which the broad enquiry as to best interests must be conducted. That it remains a broad enquiry is evident from the section itself (s 60CC(3)(m)).
Ascertaining best interests by reference to those mandatory signposts must embrace the fact that: “[i]t is a mistake to think that there is always one right answer to the question of what the best interests of a child require … [b]est interests are values not facts” (CDJ & VAJ (1998) 197 CLR 172 at 219).
In the current context, values necessarily intrude because, as is frequently the case in “relocation cases”, this dispute is between, as I find, decent, loving, caring parents who are, generally, well motivated in properly prioritizing their children’s best interests, but who are caught on the horns of a delicate dilemma and there is an assertion by each of rights or freedoms to which each is entitled.
It is perfectly consistent with a parent’s rights in this democracy that they have not only what has been referred to as a “freedom to move”, but also a freedom to make choices about how they should re-structure their lives upon the breakdown of a relationship with their fellow parent. It follows, consistent with those rights, that one parent ought not have a “veto” over the rights of the other parent by reason of the circumstance that they have children together and once had a relationship that produced those children.
Yet, parenthood not only brings with it a miscellany of rights, duties, responsibilities and difficulties; it also brings with it, for loving and caring parents – and for the children - great joy and satisfaction from the regular involvement in their children’s trials and tribulations, successes and failures. It is perfectly consistent with a loving parent’s rights in this democracy that they should seek to have the, as it were, freedom, to have that regular involvement and to experience those joys and dramas as their children grow day by day and year by year. It also follows, consistent with those rights, that, equally, the other parent ought not have a “veto” over those rights.
When parents can’t agree, the court’s assessment of best interests is the measure of the extent to which those legitimate rights and freedoms must give way. (See AIF v AMS (1999) 24 FamLR 756; U v U (2002) 211 CLR 238).
A “relocation case” takes its place as, and falls to be determined as, a parenting case in which the fact-finding (and, perhaps, value-finding) exercise leads, as in any other parenting case, to a conclusion about these specific children’s best interests. The enquiry remains the same as in any other parenting case (what orders are in the best interests of the children) but involves a specific, and acute, issue.
The inquiry as to best interests in a “relocation case”, as in all parenting cases, is the starting point. The determination of orders best meeting the children’s best interests in a “relocation case” is, as in all parenting cases, also the end point.
“Best interests” – and, thus, the findings of fact (and values) which underpin it - is also a servant to many masters within Part VII. The Act prescribes but one method for determining best interests and that is the making of findings in respect of the matters specified in s 60CC. Those findings, then, find their way into a number of different aspects of the decision in respect of parenting orders including, for example, parental responsibility and quantities of time.
Importantly, the reference in earlier authorities to ascertaining and assessing the parties’ “proposals” is not to be seen as a reference to some legal term of art or arcane legal requirement. The parties’ proposals are – no more and no less – the manifestation of these particular parents expressing, in practical terms, their “solution”, or their best attempts at resolving, the dilemma posed by their legitimate desires, rights and freedoms.
In other words, the parties’ proposals (or some alternative proposal which the court considers to be more appropriate) are integral to, and form part of the court’s findings as to best interests.
(b)Best Interests and s 65DAA
Section 65DAA, which mandates a consideration of prescribed time periods in prescribed circumstances, creates, to my mind, some conceptual difficulties in the context of a “relocation case”.
The criterion by which the court considers the application of either prescribed period of time is best interests. (See s 65DAA(1)(a) and (2)(a)). That is, the court considers the application of either period of time by analysing the findings made in respect of s 60CC because that section remains the Act’s only basis for doing so.
So, too, if either period of time is in the children’s best interests, and reasonably practicable, the coda to each sub-section reminds the court that in “… deciding whether to go on to …” make the relevant order the court must consider the fact that best interests is the paramount consideration. This appears to suggest an additional step – a check perhaps – before making orders. Again, the criterion is “best interests”. Again, that is determined by the same analysis of s 60CC findings – a task that must have already been carried out in arriving at the first of the determinations required by s 65DAA.
The picture becomes even more clouded, or circular, by reference to the second requirement of the section – whether the proposed amount of time is reasonably practicable. The criteria for that are contained in s 65DAA(5).
Yet, again, before getting to that point, the court has already to be satisfied that the specified time period is in the children’s best interests. In order to do so, the court must have already made findings about the relevant s 60CC considerations and analysed those findings to arrive at an assessment of best interests. Thus, axiomatically, the court must have considered, if relevant:
a.“the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis” (s 60CC(3)(e)). (Compare s 65DAA(5)(a) & (c));
b.“the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent” (s 60CC(5)(c). (Compare s 65DAA(5)(b) & (c));
c.“the capacity of each of the child’s parents … to provide for the needs of the child including emotional and intellectual needs” (s 60CC(3)(f)). (Compare s 65DAA(5)(b) & (c));
d.“The likely effect of any changes in the child’s circumstances, including the likely effect on the child or any separation from either of his parents …” (s 60CC(3)(d)). (Compare s 65DAA(5)(d)).
And, more generally, compare the requirements of the primary consideration in s 60CC(2)(a) with s 65DAA(5) as a whole.
Clearly enough, the s 65DAA requirements have specificity to the periods of time referred to in the section. But, where the best interests criterion (and, thus, the findings as to the s 60CC considerations, including those just mentioned) are used to arrive at a decision which precedes the necessity to go on to consider “reasonably practicability”, a certain duplication, or circularity, is experienced.
What is in my view abundantly clear is that a decision about “reasonable practicability” cannot per se be determinative of whether an “equal time” or “substantial and significant time” order is made in a “relocation case”. That is because neither such order (nor the s 65DAA process) can be the end point of the court’s enquiry; orders in the best interests of the children is the end point.
In my view, where a consideration of the prescribed time periods is required, or where a proposal by a party (or the court) suggests either such period of time, findings in respect of the matters specified in s 65DAA(5) are best taken up and made in the context of other findings pursuant to s 60CC (provided, of course, it is made clear, if necessary, that some such findings relate specifically to s 65DAA(5) and provided further that the process required by s 65DAA consequent upon those findings is clearly followed.
That is the approach I intend to adopt in this case.
(c)Best Interests and Parental Responsibility
The statutory presumption is rebuttable in circumstances where the court has reasonable grounds to believe that (relevantly) it is in the bests interests of the children for that presumption to be rebutted. Again, then, the s 60CC findings as to best interests are called into use. In my view, a specific additional consideration (s 60CC(3)(m)) also emerges.
Parental responsibility is defined in the Act to mean “… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Save as the court orders, each of the father and mother has parental responsibility for each of the children. A parenting order does not derogate from that save as is expressly ordered.
But, the Act requires something that appears, at least in terms, different: the rebuttable presumption in that situation is that the parents have “equal shared parental responsibility”. That phrase is not separately defined.
The Act (s 65DAC) makes it clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it requires those having equal shared parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
Carrying out those tasks and obligations, on what might be a regular basis when children are very young, carries with it potential significant difficulties. That is all the more so where, as here, the parties are already experiencing difficulties in co-parenting. Also, geographic separation may also create difficulties.
Equally, though, an order for “sole parental responsibility” in favour of a party means that the other party has no rights, responsibilities and authority in respect of “major long term issues” for the children save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAC and s 65DAE).
The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for their children - particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
There is no doubt that the exercise of that discretion ought be resolved in favour of an outcome which is seen to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
I will make findings about this issue later in these reasons.
Summary of Applicable Principles
Consistent with my understanding of the authorities to which I have earlier referred, including those post-Reform Act Full Court decisions specifically addressing “relocation cases”, and by reason of my views just discussed (which I consider to be consistent with those authorities), I proceed to determine this matter applying the following principles:
·A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances;
·A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.
·Relocation cases, like all parenting cases, involve a determination of best interests as the measure by which legitimate rights and freedoms of the parties must give way to the rights and interests of the children;
·In that way, best interests is the paramount, but not the sole, consideration whatever be the nature of the order informed by findings as to best interests. That includes orders relating to parental responsibility and the rebuttal of the presumption in favour of equal shared parental responsibility in particular;
·All parenting cases require precise proposals by the parties (including, if thought appropriate, alternative proposals). The proposals are (or should be) the expression of each party’s assessment of their children’s best interests. “Relocation cases” are no different.
·The issue of relocation (and, necessarily, the parties’ proposals in respect of same) should not be considered separately from the issue of best interests. In truth, the proposals, including potential relocation, form part of the factual permutations within which best interests must be considered and findings made.
·The court is not bound by the parties’ proposals. Where the evidence points to an alternative being in the best interests of the children, orders should be crafted by the court accordingly;
·Findings in respect of the relevant s 60CC considerations, and an ultimate analysis and balancing of those findings should, when applicable, take account of the prospect of equal or substantial and significant time, whether because s 65DAA mandates it or because either is a proposal of the parties or looms as a potential order;
·Findings relevant to s 65DAA, if applicable, can and often more appropriately should be made as part of the s 60CC exercise, because, although requiring a specific process, any s 65DAA considerations are founded ultimately in findings as to best interests;
·Findings necessary to underpin an ultimate finding of “reasonable practicability” (s 65DAA(5)) can be, and often more appropriately are, conducted as part of the s 60CC exercise. Any specificity inherent in those s 65DAA(5) factors which do not overlap with s 60CC considerations can often readily be accommodated within the s 60CC exercise (s 60CC(3)(m)). As best interests governs the s 65DAA exercise, it is often convenient and appropriate to consider any matters directly relevant to s 65DAA(5) within the overall assessment of best interests. Of course, those findings, must be applied as the s 65DAA process requires;
·The abrogation or curtailment of parental responsibility with respect to long term issues involves a serious interference with fundamental rights and that is a factor which ought often be taken into account in assessing whether the best interests require the rebuttal of the presumption. Obviously, that right must give way where the best interests of the children require it. Equally, the court may need to craft orders for parental responsibility where the children’s best interests require it.
The Evidence of Mr C
I need to record some matters in respect of the evidence of the Family Consultant, Mr C.
On the first day of hearing, in accordance with the court’s LAT process Mr C had provided an oral report based on preliminary observations with the family. That evidence was primarily (but not exclusively) directed to a then issue between the parties, namely whether the mother and the children could travel to the United States for a holiday period and, if so, for how long.
However, during the course of that evidence, Mr C also obviously provided observations of, and opinions in respect of, the children’s attachments with each parent and other issues considered relevant by him.
Mr C, and the court, contemplated that he would provide a family report for the purposes of this further hearing of the matter. For some reason (not at all related to any actions or inaction of the parties or their legal advisors) a breakdown in communication resulted in neither the family report, nor any further interviews or observations, being undertaken prior to that further hearing.
I suggested to the parties that Mr C could nevertheless provide helpful evidence. With that in mind and bearing in mind the provisions of Division 12A of the Act (and, given the approximately three months that had elapsed between his initial evidence and the date of further hearing) I suggested that Mr C, in effect, “reprise” his evidence from that earlier occasion (with, of course, the opportunity for both parties to cross-examine him). That course was agreed to by counsel for each of the parties. Mr C gave his evidence by reference to the notes taken by him at the initial consultation.
Mr C referred to a research paper by Kelly and Lamb which, in broad terms, related to outcomes in so-called “relocation cases” in the United States. Mr C was cross-examined by reference to that article when in the witness box. The article itself was not in evidence before me but specific paragraphs of it were put to Mr C together with broader questions having as their foundation the matters contained in that article.
I intentionally did not seek the production of that research paper (s 69ZN(1)(e)). I do not consider that the research paper, as “evidence”, would have assisted me in arriving at a decision about the best interests of these particular children in their particular circumstances save as was otherwise made relevant by the opinion evidence of the family consultant.
I consider that Mr C’s evidence was careful and thoughtful. It was not undermined by cross-examination. I accept his evidence.
The Parties’ Proposals
The parties’ proposals, and the manner in which they are formulated by each of the parties, have the potential to say much about a number of considerations relevant to a determination of best interests. (See, eg. s 60CC(2)(a); (3)(c), (e), (f); s 60B(1)(a) & (c)). In my view, they do so here and I shall return specifically to those issues later in these reasons.
(a) The Mother’s Proposals – U.S.A.
In an Application filed 3 September 2007 and in an Amended Application filed 21 November 2007, the mother sought an order that “the mother and children be permitted to relocate” to the US.
In those documents, she sought, additionally, orders that the father spend time with the children “for the USA summer holidays” and, in addition “for two (2) US school holiday periods”. Telephone and webcam time was proposed on Tuesday and Thursday each week for an hour failing other agreement.
The Applications each further provided that the father was to spend time with the children “if the father attends the USA” but subject to two conditions. He was required to provide “full particulars” of his trip, “including, but not limited to, his itinerary, accommodation details and copies of his return tickets …”. Secondly, any such visit “must not interfere with the children’s day-to-day routine and the children must continue to attend school and extra-curricular activities as per their ordinary routine”. Neither document provided for the periods or regularity of time that the father would spend with the children whilst in America.
There was no evidence adduced by the mother as to whether the father was willing or able to carry out any such trips as contemplated, or as to any discussions with the father, or his family, about such a possibility. The mother deposes in her affidavit in chief as to the father’s disabilities and her concerns about his capacity to parent.
During the course of the hearing, this last proposal changed. This occurred on day two, after the mother and Mr W had given evidence and had been cross-examined. During their evidence, the proposals remained as I have outlined them above.
On the second day, when Mr Byrne, counsel for the mother, was cross-examining the family consultant, he commenced to ask questions about a proposal that included the father travelling to the US for up to 3 months each year at the mother’s expense. The mother would pay for an apartment in close proximity to her and for a carer for the husband and children. I was informed that the father’s counsel had been made aware of such a proposal that morning. Its mention in cross-examination of Mr C was the first the court had heard of it.
I was critical of this at the time. I suggested to counsel that the mother’s proposal had the appearance of being “made up on the run”. Further, I indicated that the new proposal did not square with much of the evidence previously given by the mother.
For example, the mother had given evidence in the witness box the previous day that her proposals were carefully thought out (in conjunction with Mr W) with the children’s best interests in mind. Her first application had been filed some five months ago and, in the witness box (contrary to her affidavit evidence) she indicated that she and Mr W were prepared to pay only for two out of the three US holidays by the father which she proposed.
The essence of Mr W’s evidence in the witness box, when asked, in particular, about meeting the cost of two of the three holiday periods, was that, for, in effect, tactical reasons, he “did not want to go down that path”. In re-examination, he was asked about the possibilities that the father would not or could not contribute financially to holidays. He responded: “let me see what I can do”.
It is in that context, that the proposal for the additional three months time was made on day two. I required the mother to return to the witness box to give evidence of this new proposal. The proposal involved the father seeing the children “whenever he wanted”.
I will call this proposal, with all of its components, “the three-month proposal” to distinguish it from the original proposal of the mother identified earlier in these reasons.
When it was put to her that the three month proposal might mean, in L’s case, the father seeing her every day she said that, if that is what the father wanted, that was fine. As ultimately drafted[1], the final proposal provides for the father spending time “…if the father attends the USA, [he] shall spend time with the children for the duration of his visit and being up to a period of three months” It is not entirely clear to me what time the three-month proposal offers the husband on weekdays. That time also includes the two conditions referred to above and, in addition:
“… the father shall spend each alternate weekend with the children from conclusion of school Friday until 5pm Sunday and any other times with the children as he desires during the day whilst the children are not at school before their allocated bed times and so long as [the condition as to non-interference with routines etc] has been complied with”.
[1]Given the circumstances in which this proposal arose, at the end of the hearing I asked each of the parties to set out in writing precisely what orders were sought by each of them. Proposals from each were received.
The costs of the trips to Australia are not provided for in those Orders ultimately sought although the evidence at trial was that the mother would fund at least two, and possibly three, of those trips. The costs of air fares, accommodation and a carer in the three month proposal will be met by the mother for the mooted travel by the father to the US, but if he brings his own “support person”, it is proposed that he meet those costs.
The proposal was put, in its rudimentary form, to the Family Consultant and given in evidence by the mother when recalled without any indication from the father as to his ability or willingness to live in the US for three months in a place he had never seen with the assistance of a carer whom neither he nor the children had yet met. When he did give evidence, the father said he did not want to go to the US as offered. I asked him why. He said (“because there is no facilities or people I know”).
Upon questioning from me, the mother confirmed that her proposal did not include paying for either of the father’s parents to come to the US for the proposed three month period. The paternal grandmother also gave evidence about this issue. I will refer to this evidence later in these Reasons.
(b)The Mother’s Alternative Proposal - Australia
In each of the Application and Amended Application, the mother sought alternative orders in the event that the “the mother and children not be allowed to relocate”. They each proposed that the children live with her and spend time with the father.
The Application sought a (face-to-face) time order that would see the children spending time with their father for three days and nights in one week and two days and nights in the other. The Amended Application sought an order for six days and five nights each fortnight. Between the date of the two Applications, an Application in a Case was filed (30 October 2007) which sought an order for, effectively, alternate weekend time with the father.
At the hearing before me, the mother sought orders that the father spend time with the children for three nights and two days each fortnight (after school Friday until before school Monday).
The Application and Amended Application each sought an order for equal shared parental responsibility “with respect to long term care, welfare and development”. Ultimately, the mother sought an order – essentially, I think, arising out of questions posed by me to each counsel in respect of the nature of such orders – that “the mother have sole responsibility for the long-term care, welfare and development of the children in the event that consultation with the father does not reach an agreement”.
That order was sought irrespective of the country in which the children lived.
(c)The Father’s Proposals
The father’s proposal is that the children should live with the parents “week about”. Obviously enough, inherent in such a proposal is his opposition to the children moving with the mother to the United States.
The alternative proposal contained in his filed material, which assumes the mother relocating without the children, does not fall to be considered because of the firm evidence of the mother – which I accept – that she would not consider moving to the US if the court decides the children should remain here.
In response to the mother’s “three month proposal”, the father sought, in the event that the court permitted the children to move to the US, to adopt the proposal of the mother.
That alternative proposal, though, contrasts with evidence given by both he and his mother. Each were cross-examined after the mother had been recalled to the witness box and had given evidence of the “three-month proposal”.
I have already referred to the evidence of the father that he did not want to go to America as the mother moots, (because there is no facilities or people I know).
Consequent upon the separation of the parties, the father has been living with his parents. On his case, they assist in his care (although, on the evidence of the father and his parents not extensively). On his case, his parents would assist in the future care of the children.
In light of that evidence, I asked the paternal grandmother about her attitude to the “three month proposal”. She said, in effect, that the father was “comfortable the way things are”. She was concerned about the attitude of a “new person” to the father’s communication problems (even if they were a professional, trained, carer).
She said that she (and/or her husband) would like to accompany the father on any such trip – a position, I find, consistent with their erstwhile role in his life and the lives of the children.
The paternal grandmother told me that she (and/or her husband) could not afford to undertake that journey and certainly not on a regular basis. No submission to the contrary was made and I find it as a fact.
The adoption by the father of an alternative proposal in the mother’s terms in the event of the children being in the US, is consistent with a desire, clear from his evidence, to maximise his time and involvement in the children’s lives. In terms of assessing a proposal against the criterion of the children’s best interests, though, there is a distinction between the provision in an order permitting something to occur and the likelihood of its occurrence.
I will return to this issue later in these Reasons.
(d)Other Possible Proposals
Although the father was questioned as to his capacity to move to the United States, this occurred in the context of the “three month proposal” to which I have made reference as distinct from a suggestion that he move there permanently. It was not part of the mother’s case that the latter could, or should, occur.
Neither party suggested that the move to the United States should be postponed nor that I should make interim orders. I should, though, briefly give my reasons for concluding that, in any event, neither such proposal needs form part of the permutations considered pursuant to s.60CC.
Picking some point in time at which the children living in the US might be in their best interests or postponing same to a certain date or age might need to be considered if there was reliable evidence that a particular age (or, for example, developmental stage of a child) might point to a best interests conclusion to that effect. Here, there is no such evidence.
Here the existing conflict between the parties is, in my view, likely to get worse if I was to make such an order. Putting the move “in limbo” would, in my judgment, create additional tensions and place a strain on each of the parents.
Many exigencies lie ahead in the lives of these young children and their parents. An order of the type under discussion effectively assumes that any such contingencies would combine to continue to indicate that, at some future point, a move was in the best interests of the children – an assumption I am not prepared to make.
Best Interests – Issues and Considerations
(a)The Father’s Disabilities
The mother sought to place the father’s disability squarely within the context of his capacity to parent - (for example, her affidavit of evidence in chief, pars 39 - 54 and 124 – 132).
The father’s case proceeded on the basis that, whatever be the ultimate co-parenting arrangements, he would require assistance from his parents in carrying out aspects of the parenting role.
In my judgment, capacity to parent (s 60CC(3)(f)) is an important consideration in this case. In addition, facts relevant to that issue also pertain, in my view, to another important consideration, the “nature of the relationship” between the children and the father and his parents (s 60CC(3)(b)).
The current state of the father’s disability and its potential impact on his capacity to parent was the subject of expert evidence from Ms S, who is an occupational therapist, and Ms O who is a neuro-psychologist. Neither witness was required for cross-examination. No challenge was otherwise made to either witness’s evidence.
Ms O canvassed the history of the father’s symptoms, changes and functional difficulties. She concludes that a comparison with an assessment undertaken in 1996 suggested some recovery in both his verbal and perceptual intellectual abilities, although he still performed poorly in tasks that depended on the ability to quickly take in, hold and process information and to efficiently execute visuo-motor movements.
Ms O noted that the father had developed efficient strategies to help compensate for many of his ongoing physical difficulties, for example a significant impairment to his right arm (which was observed by me) and also his cognitive difficulties. In order to overcome the latter, for example, the father lists appointments on a whiteboard and keys reminders into his mobile phone.
Ms O concludes nevertheless that if the father is to be the primary fulltime carer of his two young daughters he would:
“require suitable back-up parenting support for those occasions when his physical or cognitive difficulties (such as fatigueability or communication difficulties) hindered his capacity to meet his daughter’s physical, cognitive, emotional or social needs”.
Ms S concluded that the father was, in an overall sense, “coping well with the parenting role”. She concludes:-
“He is a willing and loving father. Despite his communication difficulties, he has been able to develop a close relationship with his children and has been able to engage in age appropriate play with them and also manage a suitable daily structure of activities and provide necessary discipline. He has had ongoing support from his parents who have helped him with transport and also maintained an overseer role in his life. Such support is considered important to help him adapt to the changing demands of parenting as his children develop. Providing he has such support, I am of the opinion that he is coping satisfactorily with his role of a parent. His parenting role gives meaning to his life and he applies himself diligently and consistently to this role. He would find it difficult to secure employment because of his communication difficulties. His role as a parent has therefore become pivotal in his life”.
The father gave evidence by typing his answers which were projected on to a screen in the courtroom. His solicitor read those answers into the record. The father also attempted to give answers to questions verbally. These were, predominantly, one-word answers, although occasionally he attempted to give more expansive answers in that way.
I had the opportunity to observe the father giving evidence as I have described. I allow for the fact that he was likely to be nervous, that he was being observed and that he was in an unusual environment giving answers to questions in an unusual way. However, even allowing for those factors, the father’s capacity to express himself verbally is, speaking in lay terms, clearly significantly impaired.
I observed long delays in attempting to give an answer and, frequently, considerable delays in formulating and expressing verbally, even one-word answers properly. The typed answers to the questions indicated, generally speaking, a good comprehension of the questions and their context and, it appeared to my (lay) eye that, in the vast majority of instances, the father knew what he wanted to say but that the problem lay in expressing it.
The mother deposes to the father experiencing difficulty with the children outside of the home and needing supervision during cooking and being limited as to what he can cook. The mother concludes (para 54):-
“On account of the Respondent’s medical condition and his reliance on a third party to provide full-time care, the Respondent does not the have capacity to provide sole or primary care to the children.”
Under the heading “care concerns for the children” the mother deposes to a number of other concerns by which she says she believes that “the children were not being adequately cared for by [the father] or his parents.” She deposes (hearsay) to her mother advising her that the children had nits on two occasions and a vaginal infection.
The mother deposes to her view that the vaginal condition is indicative of “the respondent’s inability to adequately care for the children for a significant period of time” and “the paternal grandparent’s inability to adequately care for the children for a significant period of time” (para 37). No medical evidence was adduced by the mother.
I reject the conclusions drawn by the mother. I do not accept, in the absence of other evidence, that, as a result of (apparently) having nits on two occasions and (apparently) a vaginal infection once, I should draw any adverse conclusion about the capacity of either to provide for the children’s physical needs. All of the evidence, including the evidence of the father and paternal grandmother, which I accept, points to the opposite conclusion.
In respect of the father’s capacities to meet the children’s needs generally, I consider that the father and his mother tend to “underplay” the extent of difficulties experienced by the father as a result of his disabilities. Equally, I consider that the mother exaggerates those incapacities. I consider that the best evidence of the effect of the father’s disabilities on his capacity to parent comes from the evidence of Ms O and Ms S. I accept the evidence earlier quoted with respect to a summary of the father’s position in that respect.
With respect to the mother’s assertion that the father does not have the capacity to provide sole or primary care to the children, it is important to observe that it is not part of his case that he does. His case is that any substantial care which he provides to the children will be done with the assistance of his parents and that this is likely to continue into the future.
The mother argues, correctly in my view, that this brings with it the possibility that the vicissitudes of life might result in there being less assistance than what is ideal or even required. But those vicissitudes are just that. They weigh no more in my ultimate decision as to best interests than the fact that the vicissitudes of life might impact upon on the relationship between the mother and Mr W and/or the mother’s intention to reside permanently in the United States.
I have no concerns about the capacity of either party to provide for the children’s emotional needs.
In my view, the father’s disabilities, as described by Ms O and Ms S, and as observed by me, are likely to have an impact on his capacity to provide for the children’s intellectual needs, particularly as they get older. The father said in evidence that he reads to the children. But as the children’s sophistication with language grows, there will, I think, likely be some difficulties in the father’s communication with them, albeit that I feel confident they will make allowances for his difficulties and attempt to accommodate them. (I am conscious of the evidence of Mr C in that respect to which I will later make reference in another context).
I assess the paternal grandmother as being highly protective of her son. My observations of her in the witness box, lead me to suspect that she would have firm views about appropriate parenting and would not be shy about expressing them. However, she (in conjunction with her husband) has clearly provided a significant degree of high quality care for her son in what must have been difficult circumstances and I have no doubts as to her capacity to provide for the needs of the children, including their emotional and intellectual needs.
On the mother’s primary case, Mr W will, clearly enough, be a significant person in the children’s lives. Mr W’s evidence gave me no reason to have concerns about his capacities to meet any of the children’s needs. It seems that he and his former wife have reached an agreement about ongoing co-parenting of their children and that he sees them regularly. However, given that it is the needs of the children that are the subject of consideration, it is necessary to observe that Mr W’s capacity to provide for the needs of these children, and to do so in the context of a blended family, has not been tested or scrutinised.
I think it likely that the father’s capacity to provide for the children’s requisite needs will be impaired in circumstances where the “three-month proposal” applied, particularly if a paid carer and not his parents was availed of. It is by no means certain that the three-month time would take place in any event, but, if it did, I find the more likely occurrence, because of the father’s parent’s financial circumstances, is a paid carer.
The father’s capacity to provide for the children’s needs also depends, at a more subtle level, on his “getting his message across” in non-verbal forms.
Mr C, the family consultant drew a comparison between face to face and other forms of time for the father. He referred to matters such as physical touching, the children responding to non-verbal cues and allowing a full range of emotions between the children and the father.
I assess the capacity of this particular father would be significantly impaired if, while the children were in the United States, the time that has erstwhile been spent with the children in face to face time, would need to be spent another way (for example through webcam and telephone communication).
I find:
·Each party (in the father’s case with the assistance of his parents) has, in broad terms, the capacity to meet the physical needs of the children;
·If the children live in Australia, that is likely to remain so whatever be the proportion of time ordered to be spent with each parent;
·Each party has, in broad terms, the capacity to meet the emotional and intellectual needs of the children, although the father’s capacity in the latter respect is impaired and may become more so as the children get older and they become more intellectually sophisticated;
·If the children remain in Australia, that is likely to remain so. The qualifying factor just mentioned impinges upon a decision in respect of the proportion of time ordered to be spent with each parent;
·The mother has the capacity to meet all of the needs of the children if they live with her in America. In that event, the capacity of her partner, Mr W, with respect to the subject children is untested;
·If the children live with the mother in America, the capacity of the father to meet their emotional and intellectual needs between face to face periods of time is likely to be significantly impaired (irrespective of whether the three month proposal applies or time is restricted essentially to three periods of holiday time in Australia);
·If the children live with the mother in America, the capacity of the father to meet the needs of the children within the three month proposal will likely be highly compromised without the assistance of his parents (including if a paid carer assists him);
·If, as I find is likely, the father’s parents are unable to accompany him to America, the three month proposal is unlikely to provide regular face to face time between the father and the children in America into the future;
In my judgment, the father’s disabilities have ramifications for the nature of the relationship between he and the children (s 60CC(3)(b)). As I made clear during the hearing and have referred to earlier in these reasons, the evidence in this case, taken as a whole, persuades me that each of the parents are loving, caring parents who can usually be relied upon, individually, to predominate in an appropriate way the best interests of their children.
I accept the evidence of Mr C and the mother that she is the primary attachment figure for the children. It is not possible, and in my view in any event not desirable, to attempt to give further definition or quantification to that distinction. I accept the evidence of Mr C (and the father) that the children have a close and significant attachment to him and the whole of the evidence before me points to that conclusion.
In my judgment, the mother tended to “underplay” the significance of the role of the paternal grandparents, and particularly the paternal grandmother, in the lives of these young children. Mr C was of the view that there is a “significant” attachment between the children and their paternal grandparents and grandmother in particular. I accept that evidence. It accords with my own assessment of the evidence. I note in that respect that the children spent all but six months of their lives living with their parents in the home of the paternal grandparents.
I find, within the meaning of s 60CC(4) and 4(A), that the parents have each, pre and post-separation, taken the opportunity to actively participate in making decisions and the parenting of the children and have each appropriately fulfilled their obligations as parents, including maintaining the children.
I find that a particularly important aspect of the nature of a relationship between the children and their parents, given their age and attachments, is the need to spend face to face time with each of their parents on a regular basis. I consider it also important, within that context that the children spend face to face time with the paternal grandparents.
I agree with the evidence of Mr C that what these (or any) children need is a relationship with each of their parents which is simple, predictable and consistent.
It was put to the mother that her proposed move will mean a fundamental change to the nature of the relationship between the father and the children. The mother replied, “I guess it will”. I find that it will. Specifically, I find that it will irrespective of whether the three month proposal is taken up and/or is effective.
The nature of the relationship between the children and both parents will be very different if either of the mother’s proposals involving a move to the United States are put into place. Assuming the three-month proposal is put into place, the nature of the relationship between the children and each of the parents would have significant differences at differing times within any one year.
For three months of the year, the father would be seeing L as much as every day. Necessarily, she would then not be with her mother every day. A would see her father after prep/school every day (and not be with her mother during that time.) The children would leave the father’s care to return to the mother’s care at some unspecified time each day to sleep. During the time with the father they would also be with an as yet unknown carer. Upon the father’s return to Australia, the children would see their father only by webcam. They would then spend a large amount of holiday time (up to ten weeks) during which they would have no face to face time with the mother. They would have no opportunity to participate in holiday activities in the United States nor to interact with their US friends and family during school holiday time.
Those arrangements have the potential advantage of maximizing father-children time and, indeed, propose time more extensive than one might expect across significant international boundaries. In my judgment, however, such an arrangement does not provide the children with the stability and consistency of care, and firm day-to-day emotional connections with each of their parents which they need – particularly at their current ages.
In truth, I assess the three month proposal (if taken up) as chaotic for the children and potentially highly problematical, not least because the “loose” arrangements for the father’s care when in the United States would require a very high degree of co-operation, trust and communication which, I find, these parties do not have.
If the three-month proposal is not availed of because, for example, the grandparents can’t afford it and the father won’t go without one or other of them, the mother’s other proposal again has the advantage of maximizing time between the father and the children in Australia, a place that is, at least initially, familiar. In Mr C’s terms, the arrangement might be described as simple and predictable.
However, again, whilst the children are young, it also involves significant time away from the mother and time away from her whilst they re-adjust to time in Australia. Once adjusted and used to the father and his parents in their day to day lives for a lengthy period, they return to the US with a long gap until the next face to face time. In my view, the proposal lacks the third of Mr C’s criteria: consistency.
Equally, inherent in the proposal are lengthy periods where the only contact between the children and their father will be by telephone and webcam. It was suggested by counsel for the mother that telephone and webcam communication would, as it were, make up for that loss. In that context, Mr C referred to matters such as physical touching, the children responding to non-verbal cues; allowing a full range of emotions between children and father and the difficulties in maintaining interest in, and commitment to, webcam contact for young children, and, in particular, a child of L’s age. In response to my question that, in effect, for children of this age nothing can take the place of a loving parent’s hug, Mr C responded that he observed the children in this case seek out hugs from their father.
Ultimately, Mr C was of the view that telephone and webcam contact “was not anywhere near on a par” with personal touch and contact afforded by face to face time between children and their father. I agree. Further, whilst in my judgment, that is likely to be true generally, the particular difficulties confronted by this father and the ages of these children make it, I find, all the more true. I reject submissions made by counsel for the mother arguing to the contrary.
With specific reference to the father’s disabilities, in response to a question from Mr Jordan (counsel for the father), Mr C said that, by reference to his experience in working with people with disabilities or with mental health issues, children tend to develop a protectiveness or a heightened degree of concern toward the disabled parent with a consequent need to check out that the parent was ok. The corollary is that absence may heighten concerns by the children for their father.
The evidence and findings just referred to persuade me that it is in the children’s best interests that they spend frequent, regular, consistent face to face time with each of their parents and, as part of that, with their paternal grandparents.
(b)The Children – Attachment and Change
I consider the issue of the children’s attachment as being of vital importance to a decision about the children’s best interests.
Clearly enough, findings about that issue have resonance in many of the s 60CC considerations, not least the primary consideration at s 60CC(2)(a). I consider a finding on this issue also has very significant importance with respect to s 60CC(3)(d) (likely effect of change).
Mr C was quite clear in his views about the likely effect of the children living in the United States. He considered that such a move (with its consequent proposed care arrangements involving the father) risked for the children their attachment with their father not being maintained and deteriorating “very significantly”. Coupled with that was his view already mentioned that telephone and webcam communication would be much less effective in maintaining that attachment than face to face time.
Mr C’s evidence that the attachment between the children and their father may not be able to be maintained and may “deteriorate very significantly” was put to the mother by Mr Jordan in cross-examination. The mother, in effect, rejected Mr C’s evidence indicating that “he doesn’t know my children”. The limitations on the process conducted by Mr C have already been referred to and are real. They were specifically recognised by him in the witness box – and, I should say, prior to any question being asked of him. Nevertheless, his evidence in my view remains cogent and powerful. I do not consider that any such limitations impact upon the evidence just referred to.
I consider there is a high risk of the significant attachment between the children and their father being detrimentally affected if either of the mother’s US proposals are put into place. In my judgment that is likely to bring with it significant detrimental emotional issues for these children.
I have already referred to the fact, and have found, that the children enjoy a significant attachment with their paternal grandparents. I have accepted the evidence of the grandmother that she (and/or her husband) would simply be unable to afford the “three month proposal”. This would necessarily mean that the attachment and relationship between the paternal grandparents and the children would need to be maintained to such degree as was possible by three block periods of holiday time which they would share (either totally or, predominantly) with the father.
In my judgment those periods of time, with the gaps in face to face time inherent in them, are likely to be insufficient for the children to maintain their significant attachment with their paternal grandparents.
I consider that the relationship created by the gaps in time spent physically by the children with their father will be less meaningful to them than one where time is spent regularly, on a week to week basis, with both parents. In my judgment, the children would benefit from the latter and not so from the former.
It is, of course, axiomatic that the proposals of each of the parties involve a change. In the case of the mother’s US proposals, it could hardly be argued that the changes are not the more dramatic. Doubtless, America has many of the advantages, particularly economic advantages, that the mother hopes for. The children will, if all goes well, derive material advantages from such a move.
So, too, the mother says they are excited about America and the prospect of living there. I have little doubt that this, too, is true. But they know little of the tyranny of time and distance, a topic I will return to below. Nor does attachment or bonding find expression with young children as readily as the excitement of a new place – particularly a place for which the mother, a significant attachment figure, expresses enthusiasm and excitement.
However, I am conscious of the fact that the proposals of each of the parties also involve a change for the children, whether the children move or remain living in Australia.
The significance of any of the changes mooted by either of the parties (whether in Australia or the US) are, in my view, heightened by the fact that the children have spent all but six months of their lives until their parents separated in the daily presence of their parents and grandparents.
So, too, there has been significant involvement by both parents in the approximate 12 months that the parties have been separated. During that time, the children lived with the father and his parents for a period of approximately two months in the middle of 2007 when the mother went to the United States. Orders made by me on 23 November 2007 provided for the mother and children spending about three weeks together in the United States over the Christmas period and, before and after that, five nights each fortnight with their father.
The evidence about how much time the children spent with their parents otherwise in the period after separation was not entirely clear. But, I gathered during the hearing that it was essentially agreed between the parties that the father saw the children for a significant amount of time in each fortnight albeit that it was from time to time structured in different ways. Certainly, on no view of it, could the father be described as “an alternate weekend parent” during that time.
If the children are to remain living in Australia, then the father’s proposal would see them spending half of the time with he and the paternal grandparents and half with the mother. The mother’s proposal would have the children living with her for eleven nights per fortnight and the father (and his parents) two.
I find that each Australian proposal represents a change to the post-separation situation but that the mother’s proposal involves the more significant change for the children.
Whilst I have earlier eschewed the quantification of the attachment of the children to each of their parents, that does not exclude from relevance the adjudged primary attachment between the children and their mother.
This difference in attachment, and the degree of change inherent in each of the parties’ Australian proposals, are, in my judgment, important pointers to the proportion of week to week time that the children should spend with each parent.
Specifically, I consider these factors particularly important in pointing away from equal time with each parent being in the children’s best interests.
(c)The Children – The Importance of Time and Distance
The children expressed to Mr C excitement about going to the United States. Mr C urged caution however in attaching significant weight to the apparent willingness or excitement on the part of the children to travelling to, and living in, the United States. He said children of these ages had little true concept of distance and time and, crucially, the effect of each in an on-going relationship with their father and paternal grandparents.
Each of the parties and the family consultant were of the opinion, as am I, that the children are of insufficient maturity to have their views taken into account in the sense of providing specific input into what orders might accord with their best interests.(s 60CC(3)(a)). Indeed, appropriately as it respectfully seems to me, the mother recognized the limitations that ought be put on adopting the “views” ostensibly expressed by children as young as these children. She agreed in the witness box that she was not suggesting the court should act upon the children’s expressed views. She said, in effect, “they had not thought about what they are missing.” I agree.
Mr C’s evidence as to the inability of these children to appreciate fully the meaning of time and distance and their effect on the week to week relationship with their father is, in my view, cogent and an extremely important matter in assessing orders which accommodate their best interests, particularly in the context of ss 60CC(2)(a) and (3)(d) and (e).
That matter is at its most acute when assessing the mother’s US proposals. In my judgment, it points significantly to neither of the mother’s US proposals being in the children’s’ best interests.
But that factor is also relevant in assessing the respective Australian proposals. Time – or, more accurately, periods of absence from the other parent – is also a very important consideration in that context. Given the facts earlier referred to in respect of both pre and post-separation care, a gap of 12 days between face to face time with the father is, I find, significant for the children and unlikely to be in their best interests. Further, I find an absence of that amount of time detracts from the meaningful involvement of both parents in their lives having regard to their ages and the extent of attachment to each parent and the involvement of each in their pre and post-separation care.
(d)Willingness, Difficulties and Expense in Spending Time
The difficulties and expense inherent in the mother’s US proposals in so far as they impact on a decision about the best interests of these children, have already been discussed in earlier contexts.
The Act requires, when relevant, a consideration of whether the practical difficulties and expense will “substantially” effect the child’s right to maintain ”personal” relations and “direct” contact with both parents on a regular basis. Clearly enough, as already discussed, the proposed move to America will do so, however much the mother has attempted to ameliorate those effects in her proposals.
Whether, as a matter of semantics, time or communication in the form of telephone or webcam amounts to “personal” relations or “direct” contact, I consider it to be considerably less valuable for the children than face to face time spent with their father. Furthermore, as I have said, I consider that the father’s disabilities (and the ages of the children) present significant practical difficulties in communication being effected in that manner.
Again, though, I remain alive to the fact that it is not only the US proposals which involve practical difficulty and expense for the parties and children.
Evidence at the trial was directed toward what is alleged to be, in effect, recalcitrance on the part of the father in providing the children to the mother and her parents. An example is the father’s apparent unwillingness to make the children available to the mother’s parents so that they could fly to Sydney and meet the mother on her return from the US after her visit in the middle of 2007.
I think the father’s behaviour in that instance fell below a standard which has the children’s best interests at its core. Yet, tensions were clearly high and had the backdrop of the mother’s proposals to live in the US and the father’s fears associated with this. The issue is not the merit or otherwise of the behaviour, rather it is its impact on a finding about the willingness of the father (and, perhaps, his parents) to facilitate and support ordered time. (s 60CC(3)(c)).
I am not prepared to draw an adverse inference against the father (or his parents) in that regard from his behaviour in and about providing the children for time with the mother or her family after he became aware of the mother’s plans to move to America.
My feeling is that the mother (and Mr W) are sincere in attempting to provide all such proposals as they reasonably can to allow the father to spend time physically with the children in the event that they live in the US. In other words, in s 60CC terms, I don’t seriously doubt their willingness to facilitate and promote such close and continuing relationship (in terms of the father spending time with the children) as is possible in the event of their moving to America.
But, their sincerity and willingness notwithstanding, I consider that, in those circumstances, the relationship between the father and children is insufficiently “close and continuing” (s 60CC(3)(c)) or “meaningful” (s 60CC(2)(a)) to provide time or benefit or “involvement to the maximum extent” consistent with the children’s best interests. (s 60B(1)(a)).
The issue of the respective capacities of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent (s 60CC(3)(c)) has, though, more than one component. It is not simply about carrying out the requisite practical tasks necessary to allow time to be spent. It also involves a commitment to real and regular involvement in the lives of the children.
That, in turn, in my view, requires a degree of commitment to the role of the other person in the lives of the children, including respecting their role and views and input. About that, I have reservations.
First I am not convinced that the parties have a sufficient degree of trust and commitment and level of communication to facilitate the required maximum involvement. I suspect each is “intellectually” willing – that is, they each see the sense of that occurring for the benefit of the children – but I am not convinced that they can, in practical terms, carry that willingness into effect.
I addressed questions on this topic to the mother. She indicated in respect of the degree of trust and co-operation to the effect that “I don’t think we’ve ever had a conversation”. In answer to a clarifying question, the mother indicated that she meant both before and after separation.
Mr C was pessimistic about the prospects of the degree of trust and co-operation improving. I agree.
No doubt, those problems exist – and are likely to continue to exist – wherever the children live. But, in my judgment, geographic distance between Australia and the US, makes those issues more acute. Can the day to day involvement of both parents be sufficiently significant across the miles where the circumstances are such that the parties communicate poorly and are likely to do so into the future? I think not.
Is it likely that closer geographical proximity will permit of a potentially better outcome? I think so, primarily because the degree of day to day involvement will be significantly greater. In saying that, I recognise that potential practical difficulty (and perhaps some expense) also attends the co-parenting arrangements for these children if they are to remain living in Brisbane. That issue also has resonance in findings of “reasonable practicability” in another context (s 65DAA(5)).
The father is incapable of driving and relies upon his parents to do so for him. The mother is, currently, without a car and the father’s parents have been undertaking transport arrangements with respect to the children spending time with each of their parents. Furthermore, the parties are currently living about an hours drive apart in the suburbs of Brisbane. The mother is currently living with her mother. The father lives with his parents in a home which has been modified, at least in some respects, to cater for his disabilities.
The mother deposes that if she is to remain in Australia with the children it is unlikely that she will be able to afford to live on her own and she will most likely remain living with her parents.
Whether orders are made consistent with the mother’s or father’s proposals, the difficulties will remain constant. Neither the distance between the parties, nor the transport difficulties, nor the attitude of the parties or their ability to co-operate alter with acceptance of one proposal or the other.
In s 65DAA(5) terms, geographic distance remains an issue, but, again, is constant for any proposal. There is reason for pessimism about the respective capacities of the parties to implement proposals and their ability to communicate and resolve differences. But these, too, are no more or less true, in my view, for any proposal with respect to division of time.
Additionally, it is important in my view to observe that not only are those factors no more or less true whatever the care regime, but, also, the difficulties are matters which both parties, consistent with the Act’s obligations, must attempt to overcome jointly.
A consideration of this issue points away from a conclusion permitting the children to live in America but, in my view, is “neutral” in respect of distinguishing between the parties’ respective Australian proposals.
A further difficulty is mooted when the older child, A, starts school. It is said by the mother, that either an equal time order or an order that would see the children spending a number of weeknights with their father would create difficulties and confusion for the children and, in effect, be upsetting to their school routines.
The mother ultimately conceded in cross-examination that this issue was, from her point of view, the only real objection to the children spending equal time with the parties. Whilst superficially powerful, such a concession elicited in cross-examination should not, in my view, take the place of an analysis of all of the considerations required by the Act.
There is, I think, some merit in what the mother argues in the sense that an outcome that promotes stability is desirable. Again, though, this consideration is but one of the considerations required to be taken into account, all of which must be considered, in turn, in the overall context of the Act’s objects and principles.
I am not convinced that, at the children’s respective ages and stages of education, now or into the immediate future, that this factor ought weigh more heavily than the other matters to which reference has earlier been made and to which I attach greater importance.
Such an outcome also assumes implacable opposition to, or the failure of, alternatives derived through the co-operative parenting in respect of such issues which the Act (in the absence of other order) assumes.
However expressed, I do not think that the practical difficulties and expense can not be overcome. Nor do I think they “favour” one Australian proposal over another in attempting to discern the children’s best interests.
(e)The Decision to Move to America – Responsibilities of Parenthood
The circumstances in which the mother decided to move the children to America give rise, in my judgment, to concerns about the practical application of the responsibilities of parenthood (s 60CC(3)(i)). I also consider that decision, or more precisely, the apparent haste of that decision, to be relevant to the issue of the effect of change. (s 60CC(3)(d)).
I am conscious of a factor which I consider is an important caveat in making assessments of the behaviour of either party in so far as it is relevant to the assessment of best interests. The issue of relocating children, and in particular relocating children internationally, is likely to arouse strong emotions. The dilemma is acute; the ramifications for day-to-day lives and day-to-day parenting very significant and neither party is likely to be at his or her best when the issues are live.
The mother determined to move with the children to the USA in circumstances where the total face to face contact with her future husband was less than a fortnight, she positing the acceptance of the marriage proposal and discussion about moving to the last couple of days of Mr W’s visit in March 2007.
As at March 2007, the children had experienced their parents separation a month or two previously. (The children had left the former matrimonial home on 9 February.) There was post-separation conflict between the parents and between the mother and the paternal grandmother. Post-separation relationships between the children and each of their parents, and with their paternal grandparents, were, on any view, in their infancy.
The mother had not, prior to her decision, visited, or seen, her and the children’s prospective country, town or home. Mr W has two children of a prior relationship (aged 10 and 7). At the time of her decision, the mother had not met Mr W’s children, had not seen him with his children or observed his parenting and, of course, the children had not met each other. The only opportunity, at that time, for the mother to observe Mr W with her children was during his two-week visit.
These are, I think, disturbing matters in the context under discussion. Yet, they sit oddly with the overall impression I gained of the mother as a loving caring parent who, all else being equal, could be relied upon to properly predominate her children’s needs.
As with the father, I am, ultimately, not prepared to draw significantly adverse inferences against the mother’s parenting in general from this behaviour. Clearly, the prospect of, as it were, “a new life” was highly likely to be accompanied by considerable enthusiasm and excitement on the mother’s part. It may, I think, have clouded the judgment of an otherwise good parent.
I do, however, in arriving at my ultimate decision, take into account those factors in comparing (in the context of assessing change – s 60CC(3)(d)) a relatively unknown future environment for the children with a “known” in this country. In that context, they weigh against the children moving to the US.
(f)Section 60CC(3)(m) – Freedoms, Reasons and Disappointment
Earlier decisions of the High Court and the Full Court of this court did not render reasons for relocating irrelevant. A court is not permitted to require of a person seeking to move “compelling reasons”. However, reasons can clearly be relevant to many of the s 60CC considerations.
For example mala fides (for example moving for the express purpose of denying time to the other parent) and, in a similar context, capriciousness in a decision to move can be relevant. Equally, the reasons for a “remaining parent” not moving can be similarly relevant.
Here, in my view, no such factors attend either the move, or the father’s refusal to move whether permanently (which was not explored in evidence with him) or for three months. It seems to me that the mother is motivated by a desire to make a new life for herself and the children in circumstances she sees as being advantageous, and particularly economically advantageous for her and the children.
For his part, the father wishes to remain in his home country with his parents who have for so long provided a source of support and encouragement to him and who understand his specific disabilities and needs. Specifically, he also wishes to stay in their home that has purpose-built features to accommodate aspects of his disabilities.
Equally, Mr W and the mother were questioned about the possibility of Mr W moving to Australia to live with the mother and children. When giving evidence, the mother said she “knew” Mr W would, if it came to it, move to Australia to live. When Mr W gave evidence, he indicated that, difficult though any such decision would be, he would not (or, as he saw it, could not) move to Australia in the event that orders made by this court were to the effect that the children live in Australia.
In the same way that the mother ought not be required to show “compelling reasons” why she should move, so, too, in my view, the father need not show compelling reasons why he wants to remain in Australia. In any event, he has good reason for doing so, particularly in the light of his disabilities and the support he receives here from his parents.
I reiterate my earlier comments with respect to the mother’s “freedom to move” (and other freedoms) to which I consider I should attach weight. Equally, I consider I should attach weight to the freedoms of the father otherwise referred to.
There is little doubt that the mother will be decidedly unhappy with a decision by this court that the children ought remain in Australia. So, too, it can readily be anticipated that this is likely to put strain on the relationship with Mr W, in which the mother has placed great store in terms of her future happiness and of the future happiness of the children.
Equally, however, I consider that the father would also react to a decision by me that the children could relocate to America with great disappointment. That disappointment occurs against the background where he has been a significant and involved parent throughout their lives. I am cognizant of Ms S’s evidence earlier quoted, which concludes: “his role as a parent has therefore become pivotal in his life”.
It is clear that the paternal grandmother would also be unhappy at a result that saw the children moving to America and she, too, has been a significant person throughout the children’s lives so far.
I assess the mother as being emotionally strong. No evidence before me contradicts that impression. An indication of her strength of character is her adamant adherence to being with the children and to not contemplating moving to the United States without them despite any difficulties that might result in for the relationship with Mr W.
I assess the father as being less capable in that respect. In my judgment I cannot ignore his disabilities and the pivotal role the children play in his life in assessing his capacity to cope and carry out a co-parenting role meaningful to the children if they are residing in the United States.
The Meaning of s 60CC(3)(a): “Benefit of a Meaningful Relationship”
Two s 60CC considerations, only one of which is relevant here, are marked as having primacy, whilst the remaining considerations are “additional”.
I consider that the “primary considerations” have particular importance but, as the word “additional” implies, they are to be considered in conjunction with the “additional considerations”. In particular, in my view, the primary considerations do not, per se, outweigh the additional considerations.
The terms of the first of the two primary considerations (“the benefit to the child of having a meaningful relationship with both of the child’s parents”) give rise, it seems to me, to some difficulty in its application as one of the considerations from which an ultimate decision as to best interests is derived.
The expression “meaningful relationship” is not defined. Brown J in Mazorski v Albright [2007] FamCA 520 at para 26) concluded in respect of the phrase that it did not involve quantitative concepts:-
“…when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one…”
I respectfully agree, noting Her Honour’s use of the qualifying word, “strictly”.
Further, in my respectful view, Her Honour’s conclusion receives added weight by reason of the Act specifically eschewing (Note to s 61DA(1)) a presumption as to time. Put in Her Honour’s terms, the Primary Consideration is, then, relevantly, “the benefit to the children of a relationship which is important, significant and valuable to the child.”
The section requires the application of a presumption: the children (it seems both any children and these specific children) will benefit from the relationship as described. So much seems clearly either axiomatic or a fact in issue. In either event, I have difficulty in seeing how the presumption usefully serves as a pointer to orders which accommodate the best interests of the particular children in the particular circumstances under consideration. Yet, the heading to s 60CC says that is its purpose.
That is in no sense to undermine its importance. It clearly has importance – indeed, primary importance – in emphasising an underlying philosophy (or Object, or Principle – or “pillar) of the Act. The difficulty, as it seems to me, is one of application.
Factual findings as to attachment, developmental stage, the respective exercise of parental responsibility, the nature of the relationship between child and parents and the like can be seen immediately to shine a light on ultimate findings about best interests. Each such finding is overtly and intimately attached to the particular children and their particular circumstances. Each focuses (or should focus) upon the individual needs, developmental stage, psychological and emotional health and personality of the individual children. And, of course, parenting orders are, axiomatically, about effecting individual justice having considered (inter alia) those things.
The placement of the primary consideration in the Act and its designation as such, indicates, clearly enough, that it is to have a central role in the ultimate determination of best interests.
What, to my mind at least, is an incongruity, is best resolved by treating the primary considerations as supervening imperatives. To the picture of best interests emerging from factual findings based on the additional considerations (including s 60CC(3)(m)) must be added (relevantly) the consideration of a matter of primary importance to the ultimate finding of best interests, namely the consideration (not application) of a presumption that, consistent with the Act’s objects and principles, children benefit from maximising the extent to which both parents have an important, significant and valuable role in their lives.
Here, for reasons which are already plain, I find that both children have an existing relationship with both of their parents which is “important, significant and valuable”. No evidence before me suggests anything other than that the children would derive significant benefit from the continuation of such a relationship with both of their parents.
I find that each of their parents having a meaningful involvement in the lives of their children, and its continuance, is of primary importance to these two children.
Summary of Findings As To Best Interests
For the reasons previously given, I find that neither of the mother’s US proposals are in the children’s best interests.
I have paid particular attention to the benefit of each of the children having a meaningful relationship with both of their parents. I find that their involvement with both their parents would not be meaningful to the maximum extent consistent with their best interests in the event of orders embodying either of the mother’s US proposals.
I assess the change involved for the children in living in America to be significant. I think it risks the strong attachment they have with their father. I consider that telephone and webcam time are unlikely to bridge that gap. I find that the “three month proposal”, while commendable in its attempt to maximise time between the children and their father, is also unlikely to bridge that gap; that neither US proposal has the requisite predictability and certainty which I assess as important to the children. I find the “three month proposal” is likely to be insufficiently predictable and stable for the children and I consider the long absences from each of their parents care inherent in the US proposals to be contrary to the children’s best interests.
Consequent upon those ultimate findings, it is necessary to turn to each of the Australian proposals.
I find that the mother’s proposal for, in effect, “alternate weekend time” is not in the children’s best interests.
In particular, I am convinced that such a proposal is not consistent with the maintenance of the level of attachment erstwhile enjoyed by the children with the father and the paternal grandparents and necessary for them in the future. It is also not consistent with the pre and post-separation role each has played in the children’s lives. I consider a significant change to those roles to not be in the children’s best interests.
I have again paid particular attention to the benefit of each of the children having a meaningful relationship with both of their parents. I find that their involvement with both their parents would not be meaningful to the maximum extent consistent with their best interests in the event I made orders which would see a “gap” of eleven nights and 12 days in face to face time between the father (and paternal grandparents) and the children.
I am not persuaded that an “equal time order” is in the best interests of the children. Whilst conscious of the primary importance of maximising involvement by both parents, I am persuaded that, in particular, the primary attachment of the children to their mother, the likely difference in the nature of the future relationship between the children and their parents (and, in particular, the tendency for the children to develop a heightened degree of protectiveness to their father) and the differing capacities of the parents to provide for the children’s growing intellectual needs are factors weighing in the balance against an equal care regime being in their best interests.
My findings about the extent and importance of the children’s attachment to their father (and the paternal grandparents), the benefit to be derived by the children from maximising their father’s (and his parent’s) involvement in their lives; the nature and extent of the pre and post separation involvement in the children’s lives and the desirability of minimising change for the children point to the children spending substantial time in their father’s care.
In my judgment, the children would most benefit from a care regime that saw them spending five nights each fortnight with their father and the balance of time with their mother.
For the reasons given earlier, I have concerns about the children being away from either parent for lengthy periods of time during holiday periods and certainly for the approximately ten weeks proposed by the mother during the American summer holidays.
I remain concerned about that issue, even with the children remaining in Australia. Non-holiday time would see the children absent from their father for nine nights and the mother five. Dividing holiday time equally would see that absence being up to seven nights except in the December / January holidays which, if taken in a block, would see the children absent from each parent for about 21 days. In that respect, it is noted that the younger child L is not yet three.
In order to accommodate that concern, for the 2008/09 Christmas holidays, I will order that, although they be halved, neither party take more than two weeks at a time. Thereafter (noting that L will then be approaching five), those holidays will revert to three weeks to each party.
I have found that the father will experience difficulties in the use of telephone and webcam time. In particular, I have found those forms of time to be inferior, for the children, to face to face time. My order contemplates the children living in Australia and spending relatively short periods of time away from each parent. The importance of those forms of time and their role in maintaining the children’s attachment and relationship with the absent parent diminish significantly. However, it does not follow that they should not be availed of, including by the father with the difficulties I have found. I will order that each parent have telephone and/or webcam communication with the children when absent from them.
Findings – Parental Responsibility
By reason of the findings made earlier, I conclude that there is some cause for pessimism about the likely degree of required co-operation and trust between these parents.
The mother gave evidence in the witness box in answer to my questions that, in effect, she and the father had never had a conversation before or after separation. The affidavit material is replete with accusation and counter-accusation and examples of lack of co-operation and conflict. The evidence of the paternal grandmother, whilst not dismissive of the prospect of future co-operation between she and the mother, was not optimistic about those prospects in the short or medium term.
A central plank of the submissions of Mr Jordan in favour of the presumption applying was that ‘because the parties have tried and failed it doesn’t mean that the best interests of the children require rebuttal of the statutory presumption”. I agree.
I refer again to what I consider to be a significant issue, namely the abrogation or truncation of fundamental rights. That, too, is a factor in my decision.
The very fact of the statutory presumption, in the context of Part VII read as a whole, points against its ready rebuttal.
The erstwhile role of each of the parents in the nurturing and parenting of the children is also a significant matter and points against rebuttal of the presumption irrespective of where the children live.
I also take account of the fact that the proposed move by the mother so soon after the parties separated is highly likely of itself to exacerbate conflict and create tensions that might not otherwise prevail once time commences to heal some of the wounds associated with the breakdown of the parent’s relationship. By the time of trial these parties had been separated barely twelve months and most of that time had been spent in conflict over a central – and very difficult – issue.
In these circumstances, I find that the best interests of these children in these circumstances do not require rebuttal of the statutory presumption nor the formulation of specific orders in respect of aspects of parental responsibility.
Findings – Section 65DAA
Having so concluded with respect to parental responsibility, s 65DAA of the Act requires me, in accordance with the mandatory sequence contained within the section, to consider forms and quantities of time.
I have made findings about the children’s best interests which, as the section contemplates, guides my determination of a consideration of equal time. I have considered whether an equal time order is in the best interests of these children and concluded that it is not.
Accordingly, it is not necessary for me to consider if such an order is reasonably practicable;
I have then gone on to consider whether the children spending substantial and significant time with each of their parents is in their best interests and have concluded that it is.
I have, in determining best interests concluded that such matters as are raised as suggesting that such an order is not reasonably practicable do not preclude such an order being made – an order for substantial and significant time is no more or less reasonably practicable in the terms made by me than an order for any other division of parental time.
I order accordingly.
I certify that the preceding two hundred and forty-five (245) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy
Associate:
Date: 20 March 2008
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